Citation Nr: 1323971 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-38 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent disabling for instability, left knee. 2. Entitlement to an evaluation in excess of 10 percent disabling for patellofemoral syndrome, left knee. 3. Entitlement to an evaluation in excess of 20 percent disabling for impingement syndrome, right shoulder. 4. Entitlement to an evaluation in excess of 10 percent disabling for patellofemoral syndrome, right knee. 5. Entitlement to a compensable evaluation for chronic sprain, right ankle. 6. Entitlement to a compensable evaluation for residuals of a left index finger fracture and surgery. 7. Entitlement to service connection for posttraumatic stress disorder (PTSD). 8. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability. 9. Entitlement to an effective date prior to April 5, 2007, for the grant of service connection for instability, left knee. 10. Entitlement to an effective date prior to April 5, 2007, for the evaluation of 10 percent disabling for patellofemoral syndrome, left knee. 11. Entitlement to an effective date prior to April 5, 2007, for the evaluation of 20 percent disabling for impingement syndrome, right shoulder. 12. Entitlement to an effective date prior to April 5, 2007, for the evaluation of 10 percent disabling for patellofemoral syndrome, right knee. 13. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1991 to January 1997 and from April 1999 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, and a July 2011 rating decision of the VA RO in San Diego, California. Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. at 447. Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the Veteran has reported that he has been unemployed since separation from service and VA examiners have indicated that his service-connected knee, shoulder, and ankle disabilities have significant effects on the Veteran's usual occupation. The Board infers the claim for TDIU from these statements and has characterized the issues on appeal as including a claim for entitlement to TDIU. The issues of entitlement to an evaluation in excess of 10 percent disabling for instability, left knee; entitlement to an evaluation in excess of 10 percent disabling for patellofemoral syndrome, left knee; entitlement to an evaluation in excess of 20 percent disabling for impingement syndrome, right shoulder; entitlement to an evaluation in excess of 10 percent disabling for patellofemoral syndrome, right knee; entitlement to an effective date prior to April 5, 2007, for the grant of service connection for instability, left knee; entitlement to an effective date prior to April 5, 2007, for the evaluation of 10 percent disabling for patellofemoral syndrome, left knee; entitlement to an effective date prior to April 5, 2007, for the evaluation of 20 percent disabling for impingement syndrome, right shoulder; entitlement to an effective date prior to April 5, 2007, for the evaluation of 10 percent disabling for patellofemoral syndrome, right knee; entitlement to service connection for PTSD; whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability; and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to August 20, 2010, there is no objective evidence of moderate reduction of the range of motion of the Veteran's right ankle. 2. Beginning August 20, 2010, the objective evidence reveals moderate reduction of the range of motion of the Veteran's right ankle. 3. The Veteran's left index finger disability is manifested by stiffness, numbness, and weakness; however, it does not manifest and gap between the fingertip and the proximal transverse crease of the palm or ankylosis. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for chronic sprain, right ankle for the period prior to August 20, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). 2. The criteria for an evaluation of 10 percent disabling, and no higher, for chronic sprain, right ankle, for the period beginning August 20, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). 3. The criteria for an initial compensable disability evaluation for left index finger disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5229 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Appropriate notice was provided in August 2010 and the claims were readjudicated in an October 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. The duty to assist has also been met and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The appellant was afforded VA medical examinations in August 2010 regarding his right ankle and left index finger disabilities. The Veteran was scheduled for additional VA examinations regarding his right ankle and left index finger disabilities in May 2012; however, he failed to appear for these examination. There is no indication that the Veteran did not receive notification of the examinations. The Veteran reported in October 2012 that he underwent a VA examination in 2009. Review of the claims file does not reveal an examination report dated in 2009 and does not reveal that examinations were scheduled for 2009. However, the Veteran underwent VA medical examinations in August 2010. As such, the Board finds that all records of VA medical examinations have been associated with the claims file. Significantly, neither the appellant nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Higher Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability of the joints is measured by abnormalities of motion, such as limitation of motion or hypermobility, instability, pain on motion, or the inability to perform skilled motions smoothly. 38 C.F.R. § 4.45. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. Under section 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). Examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain 'on use or due to flare-ups.' DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A. Right Ankle The Veteran contends that his right ankle disability is more disabling than currently evaluated. The Veteran's right ankle disability is currently evaluated as noncompensably disabling pursuant to Diagnostic Code 5271. Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle. A 10 percent rating is warranted for moderate limitation of motion. A 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2012). Normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion, and from 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71a, Plate II. In April 2007 the Veteran reported that his right ankle has been permanently swollen since he injured it in the Marine Corps. He stated that he was told that it should have been operated on and that it was actually broken when it was being reported as a severe sprain. In July 2008 the Veteran reported that he had to stretch and "circulate" his ankle every day to prevent it from becoming stiff. He could no longer walk normally. He still got a sharp pain the seemed to come from nowhere. Swimming caused his ankle to swell up and send waves of pain throughout the entire right side of his foot. The Veteran was afforded a VA medical examination on August 20, 2010. The Veteran complained of progressive pain, stiffness, instability, and weakness. The Veteran denied interval trauma, surgery, or articular injection. There was no deformity, incoordination, episodes of dislocation or subluxation, locking, or symptoms of inflammation. There was giving way, pain, stiffness, weakness, decreased speed of joint motion, and effusions. Flare-ups were of moderate severity and occurred weekly lasting hours. The flare-ups were precipitated by prolonged walking, standing, sitting, squats, stairs, jogging, jumping, cold weather, lifting, and carrying. The Veteran had partial relief with rest and activity modification. The Veteran could stand for 10 minutes and walk one mile. Physical examination revealed no evidence of abnormal weight bearing, no loss of a bone or a part of a bone, or any inflammatory arthritis. The Veteran's gait was normal. There was lateral ligament complete tenderness. There was ankle instability described as positive talar tile, anterior drawer tests. There was no tendon abnormality. Angulation was described as subtle varus. There was no evidence of pain with active motion of the right ankle. Dorsiflexion was 0 to 5 degrees. Plantar flexion was 0 to 40 degrees. There was no additional limitation of motion with repetitive motion. There was no objective evidence of pain with repetitive motion. There was no additional limitation after three repetitions of range of motion. There was no joint ankylosis. The Veteran was diagnosed with chronic lateral ligament complex tear with ankle instability. The disability was noted to have significant effects on the Veteran's usual occupation. It caused problems with lifting, carrying, mobility, and pain. The resulting occupational problem was the assignment of different duties. There were effects on the usual daily activities. These were described as moderate impact on the Veteran's ability to engage in exercise, sports, and recreation. There was mild impact on the Veteran's ability to do chores and no impact on the Veteran's ability to travel, feed, bathe, dress, toilet, groom, or drive. The Board finds that an evaluation of 10 percent disabling, and no higher, is warranted for the Veteran's right ankle disability, effective from August 20, 2010. Prior to August 20, 2010, although the Veteran reported that his ankle was permanently swollen, had to be stretched to prevent it from becoming stiff, and was painful, there was no objective evidence of limitation of motion. Beginning August 20, 2010, the Veteran's right ankle manifested a dorsiflexion of 0 to 5 degrees and 0 to 40 degrees of plantar flexion. As noted above, normal range of motion for the ankle is 0 to 20 degrees of dorsiflexion, and 0 to 45 degrees of plantar flexion. Although the reduction of the range of dorsiflexion is significant, the reduction of the Veteran's plantar flexion is mild. As such, the Board finds that, overall, the Veteran has a moderate reduction of range of motion of the right ankle beginning August 20, 2010. Therefore, entitlement to an evaluation of 10 percent disabling, and no higher, effective August 20, 2010, for chronic sprain, right ankle, is granted. B. Left Index Finger The Veteran's service-connected disability of the left index finger is currently evaluated under the provisions of Diagnostic Code 5229. Diagnostic Code 5229 contemplates limitation of motion of the index or long finger. It provides a noncompensable rating for a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A 10 percent rating is afforded for a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5229. See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive " or " requirement must be met in order for an increased rating to be assigned). Another diagnostic code relating to the finger is Diagnostic Code 5225, which pertains to ankylosis of the index finger. As noted below, since the finger in question has a range of motion, ankylosis is not shown on examination and application of this diagnostic code is not warranted. In April 2007, the Veteran reported that his finger was permanently numb and no longer functioned 100 percent. He indicated that he was constantly dropping things when he carried them in the left hand. In July 2008 the Veteran reiterated that his left index finger was numb. The Veteran failed to report for examination in January 2010. In August 2010 the Veteran was afforded a VA medical examination. The Veteran complained of progressive stiffness, numbness, and weakness. The Veteran denied interval trauma, surgery, or articular injection. He reported flare-ups due to cold weather and overuse. These symptoms were alleviated by rest and warm weather. The flare-ups occurred weekly and lasted hours. The flare-ups were mild. Physical examination revealed no objective evidence of pain. Extension of the distal interphalangeal (DIP) joint, extension of the proximal interphalangeal (PIP) joint, and extension of the MP joint were normal with a range of 0 degrees to the finger aligning with the hand. The examination revealed normal sensation and a well healed two by one half centimeter scar, volar aspect distal phalanx left index, superficial, non tender, no keloid/infection. The Veteran was diagnosed with healed distal phalanx fracture with residual fibrosis. The disability was noted to have no significant effects on the Veteran's usual occupation. The disability had a mild impact on the Veteran's ability to perform chores, exercise, and sports. It had no impact on the Veteran's shopping, recreation, traveling, feeding, bathing, dressing, toileting or grooming. The Veteran again failed to report for an examination in May 2012. The Board finds that entitlement to a compensable evaluation is not warranted for the Veteran's left index finger disability, for any period on appeal. At no point during the period on appeal did the Veteran's left index finger disability manifest any gap between the finger tip and the palm of the hand or any limitation in extension. In addition, although the Veteran has reported that his finger no longer functioned at 100 percent, that it was numb, and that he was constantly dropping things, a VA examiner reported that sensation was normal, rendered the opinion that the disability had no significant effects on the Veteran's usual occupation, and only indicated that the disability had a mild impact on the Veteran's ability to perform chores, exercise, and sports. As such, entitlement to a compensable evaluation for the Veteran's left index finger disability is denied. The Board notes that it has considered whether the Veteran is entitled to a separate compensable evaluation for the scar associated with his left index finger fracture and surgery. However, as the scar is not deep, does not cover an area of at least 144 square inches (929 square centimeters), is not painful, and does not cause any impairment, a separate compensable evaluation is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2008). III. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The discussion above reflects that the symptoms of the Veteran's right ankle disability are contemplated by the applicable rating criteria. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral of the Veteran's right ankle disability for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In regard to the Veteran's left index finger disability, the Board notes that the Veteran complains of numbness in the finger. Although this symptom is not contemplated in the rating criteria for the left index finger, the Board finds no evidence of any unusual or exceptional circumstances, such as frequent periods of hospitalization related to the service-connected disability at issue that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. Id. ORDER Entitlement to a compensable evaluation for chronic sprain, right ankle, for the period prior to August 20, 2010, is denied. Entitlement to an evaluation of 10 percent disabling, and no higher, for chronic sprain, right ankle, for the period beginning August 20, 2010, is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a compensable evaluation for residuals of a left index finger fracture and surgery is denied. REMAND In a January 2009 rating decision, the RO denied a claim of entitlement to service connection for a spinal condition. In a September 2009 rating decision, the RO denied a claim of entitlement to service connection for a spinal condition as secondary to impingement syndrome, right shoulder. The Veteran's cervical spine was discussed in the January 2009 decision and the September 2009 decision is identified as a readjudication following the receipt of additional evidence. As the issue denied in the January 2009 and September 2009 decisions is, in essence, a denial of a claim for service connection for a neck disability and as the Veteran did not file a timely notice of disagreement with these decisions, new and material evidence is required to reopen the claim. Although the notice letter provided in August 2010 in conjunction with the Veteran's current claim discussed in general what was required to reopen a claim, including the need to submit new and material evidence, the letter did not identify that the issue of entitlement to service connection for a neck disability required new and material evidence, a discussion of the specific bases for the prior denials, or notify the Veteran of the evidence necessary to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Consequently, a remand is necessary to correct this procedural defect. The Veteran has reported that he has received treatment from Drs. N.A., E., and C.M. for his psychiatric disability. However, review of the claims file does not reveal that attempts to obtain and associate with the claims file the records regarding the Veteran's treatment from these providers. In addition, the Veteran's VA treatment records indicate that the Veteran was referred to the Vet Center for psychiatric care. However, there is no indication that the records of the Veteran's treatment at a Vet Center have been obtained and associated with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, after obtaining adequate authorization attempts must be made to obtain complete treatment records regarding the Veteran from the Vet Center and from Drs. N.A., E., and C.M. In addition, as this case is being remanded, all VA treatment records dated subsequent to June 2012 should be obtained and associated with the claims file. See 38 C.F.R. § 3.159. The most recent examination evaluating the Veteran's knee and shoulder disabilities was performed in August 2010 and additional medical records are being requested by this remand. Thus, after any records are associated with the claims folder, the Veteran should be afforded a VA examination to determine the current severity of the knee and shoulder disabilities. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran has failed to appear for a VA examination in regard to his claim for service connection for PTSD. As this remand requests that additional psychiatric treatment records be obtained and associated with the claims file, the Veteran should again be scheduled for a VA medical examination in regard to his claim for PTSD. In April 2008 the Veteran disagreed with the effective dates assigned regarding the grant of service connection for instability of the left knee, and regarding the increases of his evaluations for patellofemoral syndrome of the left knee, impingement syndrome of the right shoulder, and patellofemoral syndrome of the right knee. To date, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to the claims for an earlier effective date. Under the circumstances, the Board must remand these issues to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Since the outcome of the Veteran's claims for earlier effective dates may impact on the Veteran's claims of entitlement to increased ratings for the left knee, right shoulder and right knee disabilities, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Board is unable to review the claims for increased until the issues of entitlement to earlier effective dates are resolved. The Veteran's claims for increased ratings for his knees and shoulder may also impact upon the claim for TDIU. As such, the Board finds these claims to be inextricably intertwined. As such, the Board is unable to review the claim for a TDIU until the issues of entitlement to higher evaluations for left knee, right knee, and right shoulder disabilities are resolved. Id. The Veteran must be provided with appropriate notice of how to establish a claim for TDIU. In addition, as there is evidence that the Veteran may be unemployable the Veteran must be afforded a VA medical examination in regard to whether he is unemployable due to his service-connected disabilities. Thereafter, complete any additional development required and adjudicate the claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided notice with respect to his claim of entitlement to TDIU. 2. Send the Veteran and his representative a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) with respect to whether new and material evidence has been received sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a neck disability. The letter should explain the bases of the prior denial of service connection for a spinal disability and indicate what evidence is necessary to substantiate the missing element or elements required to establish service connection that were found insufficient, in accordance with Kent, supra. 3. Attempt to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since June 2012. 4. After securing the proper authorization, attempt to obtain and associate with the claims file all records regarding the Veteran from the Vet Center and from Drs. N.A., E., and C.M. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 5. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature, extent and severity of his right and left knee disabilities. The claims folder should be made available to the examiner for review before the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All indicated tests and studies should be performed. The examiner should express the findings of range of motion studies in degrees and on both flexion and extension, and should fully describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion due to pain of the affected joint, i.e., the extent of the Veteran's pain-free motion on flexion and extension, including during periods of flare-up. The examiner should also express any findings of instability and/or subluxation and express the degree of severity of such findings as slight, moderate or severe. The examiner should report all pertinent findings, and set forth a complete rationale for all findings and conclusions, in a legible report. 6. After associating any outstanding treatment records with the claims file, schedule the Veteran for a VA joints examination for the purpose of determining the nature and extent of the Veteran's service-connected right shoulder disability. The record must be made available to the examiner and the examiner should indicate in his/her report whether or not the record was reviewed. Any indicated tests, including x-rays if indicated, should be accomplished. The examiner should perform range of motion and state the Veteran's range on forward elevation and abduction and if he has pain on either movement. The examiner should also, in accordance with DeLuca indicate whether the service-connected right shoulder disability is productive of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any additional limitation of motion or additional functional loss. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up, that fact must be so stated. The examiner should also state if the Veteran has impairment of the humerus and if there is malunion, with moderate deformity; or marked deformity. The examiner should indicate if the Veteran has recurrent dislocations of the scapulohumeral joint, and, if so, if there have been infrequent episodes, and guarding of movement only at shoulder level; or frequent episodes and guarding of all arm movements. The examiner should state if the Veteran has fibrous union; nonunion (false flail joint); or loss of head of (flail shoulder) for his major (right) arm. The examiner should indicate if the Veteran has impairment of the clavicle or scapula with malunion or nonunion without loose movement; or has nonunion with loose movement; or has malunion. The complete examination findings, along with the complete rationale for all opinions expressed, should be clearly set forth in the examination report. 7. After associating any outstanding treatment records with the claims file, schedule the Veteran for a VA psychiatric examination to determine what his current psychiatric diagnoses are and whether there is any relationship between his current psychiatric disorders and his period of active service. The entire claims file should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should provide a full muti-axial diagnosis and should specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to DSM-IV. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorders, to include PTSD, are etiologically related to the Veteran's period of active service. The rationale for all opinions expressed must be provided. 8. After any applicable development is completed, schedule the Veteran for a VA examination to evaluate the status of the service-connected disabilities. The claims folder should be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities, either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 9. The Veteran is notified that it is his responsibility to report for any and all scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for a scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 10. Issue the Veteran an SOC with respect to his claims of entitlement to an effective date prior to April 5, 2007, for the grant of service connection for instability, left knee; entitlement to an effective date prior to April 5, 2007, for the evaluation of 10 percent disabling for patellofemoral syndrome, left knee; entitlement to an effective date prior to April 5, 2007, for the evaluation of 20 percent disabling for impingement syndrome, right shoulder; and entitlement to an effective date prior to April 5, 2007, for the evaluation of 10 percent disabling for patellofemoral syndrome, right knee, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. The RO should allow the appellant the requisite period of time for a response. 11. Thereafter, readjudicate the Veteran's claims, including entitlement to TDIU. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs